Sun's "publicity stunt" too late to hold up Win 98, Microsoft says

Microsoft has accused Sun Microsystems of conducting a publicity stunt by asking a court to prevent Microsoft from releasing Windows 98 unless it includes Java technology that is compatible with Sun's Java code. The action won't delay the shipment of Windows 98, Microsoft officials say. 'There is no merit to Sun's motion for a preliminary injunction,' says a Microsoft counsel. 'Microsoft is in compliance with Sun's (Java licensing) contract, and the timing appears intended to seize maximum publicity for Sun.'

Microsoft has accused Sun Microsystems of conducting a publicity stunt by asking a court to prevent Microsoft from releasing Windows 98 unless it includes Java technology that is compatible with Sun's Java code. The action won't delay the shipment of Windows 98, Microsoft officials said.

"There is no merit to Sun's motion for a preliminary injunction," said Tom Burt, associate general counsel for Microsoft, in a teleconference. "Microsoft is in compliance with Sun's (Java licensing) contract, and the timing appears intended to seize maximum publicity for Sun."

In two motions filed today in the Northern Division of the U.S. District Court in San Jose, California, Sun asked the court to require that any copy of Windows 98 that has Sun's Java technology in it be shipped with a version that is compatible with Sun's own. Sun also asked the court to bar Microsoft from shipping its software tools for the Java programming environment unless they generate only fully compatible Java software.

Microsoft officials said the Java software and tools it has developed are compatible with Sun's, and insisted the company has complied with the terms of its Java licensing contract.

Coming three days before Windows 98 is due to ship to PC manufacturers, Sun's legal action is a bid to generate publicity for its fabled "write once, run anywhere" programming language at the expense of consumers, said Tod Neilson, Microsoft's general manager of developer relations.

The eleventh-hour action is unlikely to prevent the operating system from shipping Friday in any case, because that would not allow time for a hearing at which Microsoft could present its case to the court -- something it is legally entitled to, Burt said.

Sun has apparently secured a date of July 31 for a hearing, Burt said, although Sun may try later this week to bring that hearing date forward, he said.

"We don't believe they can have any impact on shipping of Windows 98 to OEMs Friday," Neilson said.

Burt noted that Sun's motions do not explicitly seek to prevent shipment of Windows 98, only that Microsoft be forced to bring its implementation of Java into compliance with the specifications laid out in Sun's licensing agreement, or to remove Java altogether from the operating system, Burt said.

But Microsoft insists it has met with its contractual obligations to Sun by delivering a Java virtual machine -- the software in an operating system that runs Java programs -- and Java development tools that are compatible with Sun's guidelines.

"We are compliant -- at least to the extent that is required and appropriate under the contract," Burt said.

The motions filed today augment a lawsuit Sun filed against Microsoft in October 1997. In that suit, which has not yet gone to trial, Sun claims that Microsoft is attempting to break the cross-platform compatibility made possible by Java technology by delivering a version of Java that works only with Microsoft's products.

U.S. District Court Judge Ronald Whyte in March granted Sun a preliminary injunction in that case which bars Microsoft from using the Java-compatible logo on its products. At the time, the judge said he issued the ruling because Sun is likely to win the suit based on the merits of its case. [See "Judge Orders Microsoft to Remove Java Compatible Logo," March 24. ]

Microsoft officials today sought to distance that preliminary decision from any likely outcome in Sun's latest action. Judge Whyte's ruling was "specific to the logo issue ... but not related to Microsoft's overall compatibility," Burt said.

When deciding on Sun's request for a preliminary injunction in the motions filed today, the judge will have to consider whether Sun is likely to succeed on the merits of its case, and then weigh the harm to Sun if Windows 98 ships as-is versus harm to the public and Microsoft if the shipment were delayed, Burt said.

"Sun will suffer no irreparable harm," Burt said. "Any attempt by Sun to interfere with Windows 98 because of this small issue would create harm for the public and Microsoft that far outweighs any harm to Sun," he added.

In a teleconference earlier today, Alan Baratz, head of Sun's JavaSoft division, accused Microsoft of forcing developers to make applications run on Microsoft's Java virtual machine in order to be granted a "Win32" logo on their software products.

Microsoft officials acknowledged that the company does require Java programs to run on its own Java virtual machine to secure the logo, adding that the arrangement is "not exclusive, so developers can make their application compatible with other (Java) machines. They are free to do that," Neilson said.

Microsoft's stock was up US$1.44 when the Nasdaq closed today, to $85.69. Sun's share price rose 69 cents, to $41.81.

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